By Olin Ericksen
Staff Writer

December 5 -- With Santa Monica set to pass the state’s most far-reaching ban on environmentally harmful plastic food containers, the plastic industry is set to sue the City for skipping over the proposed law’s environmental impacts.

Under the specter of a possible lawsuit brought by the Polystyrene Packing Council (PSPC), the City Council Tuesday is expected to approve a ban on all polystyrene products, targeting non-recyclable plastic containers for food and beverages.

The scheduled vote comes five months after the council directed staff to draft a law banning the use of styrofoam and hard plastic containers at local businesses. Environmentalists say the products harm sea birds and fish that eat the debris.

Now the council appears to be moving forward with the proposed law, which was pulled from an agenda two weeks ago at the last second by City staff. Environmental groups, such as Heal the Bay, are urging the council to take action.

"We've been working on this for close to 15 years," said Heal the Bay director Mark Gold Monday, calling the measure a break-through that may be modeled across the state.

However, before the ban is even passed, there is talk a of plastics industry-driven lawsuit.

This time, instead of just sending industry representatives to voice their concerns at Tuesday’s council meeting, PSPC director, Mike Levy sent an 11-page open letter to City officials charging that the proposed ban violates state law, because it fails to review its local environmental impact.

In essence, Levy argues that the City did not conduct a review he maintains is mandated under the stringent California Environmental Quality Act -- or CEQA -- first enacted in 1972.

"(The ban) contains no mention of (CEQA) compliance and we understand that the City Council has been advised that the Ordinance is not subject to CEQA,” Levy wrote.

"However, it is well-settled that a regulatory ordinance intended for environmental protection is a ‘project’ subject to CEQA and that, where there is evidence that such an ordinance may have unintended adverse environmental impacts, those impacts must be analyzed and, if feasible, mitigated in accordance with CEQA before the ordinance may be adopted," he wrote.

Officials for PSPC maintain that similar bans have not passed legal muster.

"Municipalities and agencies that have taken the position that CEQA review is unnecessary for their environmental protection ordinances and regulatory programs have consistently lost in the courts," Levy wrote.

Yet City officials disagree. They believe a CEQA analysis is not required to enact the ban.

"PSPC's comments suggest that 'significant adverse environmental impacts' will result from City Council's adoption of this ordinance," the City Attorney's office responded in a letter. "This conclusion is based on (an) erroneous assumption."

That officials are not buying the argument that the using “biodegradable plastic" as an alternative to polystyrene plastic would have a harmful impact on Santa Monica's environment.

"These arguments are demonstrably false with respect to Santa Monica, the local environment and this ordinance, or are too vague or misleading for any meaningful environmental assessment," the City Attorneys office countered.

While such biodegradable substitute packaging would impact waterways inundated with a flood of plastics during storms, they break down in a reasonable time and don’t have polystyrene’s adverse effects on wildlife, according to a city led environmental task force.

Depending on the Councils' action tomorrow -- and the plastic industry's reaction -- the City may yet find itself in court.